Fact is, it’s the end of March and lots of folks still have their Christmas lights up. A few years ago, I did a piece for the Vermont Journal of Environmental Lawin which I mentioned people who love to festoon their abodes with electric icicles at Christmas time. In a footnote I added: “My family has lived in Vermont for generations, most recently in Glover, Barton and Lyndonville. I am now a ‘flatlander’ with a second home in Ludlow. My practice takes me all across the country. I’ve been to forty-nine of the fifty states. I can tell you that there is no other state in the country where more houses remain lovingly adorned and lighted with these electrical icicles year-round. I wonder if it is because Vermonters like to be reminded of our winters or are proud of our ability to get through them.”

I never thought about people leaving up their decorations until this week, when I saw a news item about proposed regulations requiring people to remove them. The County of San Diego will soon place a 60-day annual limit on the display of holiday lights. Click here for the news story. The new regulation can be found in the revamped lighting requirements. Click here. The section exempts from regulation (except the electrical code) “[a] luminaire used for a holiday decoration, provided it is used for no more than 60 days in a 12 month period and is off between the hours of 11:00 p.m. and sunrise.”

First things first. It looks like electrical decorations have to be removed under the National Electrical Code, Article 527, Section 527.3-B which provides: “(B) 90-Day Rule. Temporary electrical installations for holiday decorative lighting and similar purposes must be removed after 90 days.” (The Code was recently ecumenically amended recently to substitute “holiday” for “Christmas.”)

The City of Frisco, Texas, has its removal requirement right there in its zoning ordinance. Go to Section 6.08 which exempts “decorative seasonal lighting” and provides that the lights “…shall be removed within a reasonable time after any given reason [sic – presumably “season” but you could have some fun in court with the wording as it is].”

Now, what is reasonable? In Frisco, according to the ordinance: “The Building Official will determine what the ‘reasonable time’ should be.” That’s bound to result in some unhappy encounters, don’t you think?

In Greenwich, Connecticut, you get to have holiday lighting for up to 40 days per year. See Sections 6-152 and 153 of the ordinance. Sun Valley, Idaho, has gone high tech and recently amended its holiday lighting requirement with this addition: “The use of LED approved holiday lighting is strongly encouraged.” Their regulations prohibit flashing holiday lights (Grinch-esque) and they have to off at 11 p.m. Funny thing – and I’ve seen this loophole before – is that they don’t give any time before which they can be turned back on. Don’t spread this around, but by the letter of the regulation you can turn them back on at 11:01 p.m. Sun Valley allows the lighting from November 1 to March 15. Not all holidays for all religious groups fall within this time period. Visakah Puja — Buddha Day or Buddha’s birthday, for example, is the major Buddhist festival of the year and it falls on the first full moon day in May this year. Don’t put up your Visakah Puja lights in Sun Valley.

Finally, try this one for interpretation. Chilmark, Massachusetts, a town on Martha’s Vineyard, has this regulation: “Holiday lights. Holiday lights may only be permitted to be illuminated during the traditional holiday periods.”

It’s a tough business regulating these lights. Maybe the hands off approach in Vermont has some inherent merit. Besides, your electrical code may be enough.

[*with apologies to Mr. Steinbeck, and to the distaff majority of the human race, who are subsumed within the references “man, men, mankind” far too readily.]

Race has always been a lightning rod in American culture, even before the forced transport of African men and women into slavery.The literature is replete with references in the early 1600’s regarding the “savages” that occupied North America before Europeans took that land away.

In light of the events of last year, culminating in the election of the first American president of African descent, it is worthwhile to examine whether we have “arrived” at that long-awaited, “post-racial” America.There are certainly those who assert that this is the case, at least as an adjunct to a long-held political position, such as the lack of continuing need for the Voting Rights Act’s Section 5 pre-clearance process.

The same argument will be present in future consideration by state voters on initiatives to stop affirmative action in their states.See, e.g., Richard Sammon’s column at Kiplinger.com “Affirmative Action – A Minefield in the Making?”

These initiatives got their start, as is so often the case, in the Golden State of California, where a multi-millionaire, Wade Connerly, pushed for the adoption of Proposition 209 in 1996, as a reaction to the success of programs to ensure the inclusion of women- and minority-owned construction firms in government-contracted projects.

As for President Obama, Mr. Connerly has already opined that he is no “post-racial” American icon.See Connerly, “Obama Is No ‘Post-Racial’ Candidate”, guest editorial in the Wall St. Journal, June 13, 2008.He has failed Mr. Connerly’s litmus test, in that he supports continued enforcement of the 1964 Civil Rights Act, including, where necessary, affirmative action programs designed to create opportunity for diverse populations historically on the receiving end of discrimination and exclusion.

[Aside: As a modern European-American, I would consider the irony that Mr. Connerly is pushing this doctrine though he is an African-American.However, having read many of the opinions of Justice Clarence Thomas with dismay over his 17 years on the US Supreme Court, the sense of irony has been substantially dampened.]

As noted in his Wall St. Journal guest column, Mr. Connerly (a former Regent of the University of California) is the author of initiatives that in 2008 he sought to place on the ballot in 5 states, Missouri, Oklahoma, Arizona, Colorado, and Nebraska.[1]He succeeded in getting the initiative on the ballot in the latter 2 states.

As noted above, he was the force behind Prop. 209 in California[2], as well as the successful State of Washington initiative (1998), and the “Michigan Civil Rights Initiative” (okay, I admit my sense of irony is still alive and well; calling this a “civil rights initiative” is deceptively charming) in 2006[3].Opponents of the putative Michigan ballot issue sought to prevent it from being place on the ballot there; the district court judge, while ruling that the ballot issue could be put on the ballot, also found:

The Court finds that the MCRI engaged in systematic voter fraud by telling voters that they were signing a petition supporting affirmative action. However, the MCRI appears to have targeted all Michigan voters for deception without regard to race. Because the Voting Rights Act is not a general anti-voter fraud statute, but rather prohibits practices which result in unequal access to the political process because of race, the Court must conclude that the defendants’ conduct, though unprincipled, did not violate the Act.

[Aside: Now there’s a proposition that we can all get behind: so long as all voters are deceived equally, a ballot issue is legally permissible.Federal law would only intervene where the supporters of a ballot issue sought to deceive targeted racial or gender “minorities.”]

Apparently taking to heart the rulings in Michigan, Connerly’s latest round of state initiatives have been further refined to obfuscate their true meaning and impact.The initiative filed in Colorado in early 2007 was entitled “Prohibition on Discrimination and Preferential Treatment by Colorado Government” and the ballot issue language that appeared on the statewide ballot in Colorado in November, 2008 as Amendment 46, read as follows:

Shall there be an amendment to the Colorado constitution concerning a prohibition against discrimination by the state, and, in connection therewith, prohibiting the state from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting; allowing exceptions to the prohibition when bona fide qualifications based on sex are reasonably necessary or when action is necessary to establish or maintain eligibility for federal funds; preserving the validity of court orders or consent decrees in effect at the time the measure becomes effective; defining “state” to include the state of Colorado, agencies or departments of the state, public institutions of higher education, political subdivisions, or governmental instrumentalities of or within the state; and making portions of the measure found invalid severable from the remainder of the measure?

This language was set by the state Title Board, and was affirmed by the state Supreme Court by order September 10, 2007[4].

The proposed constitutional amendment was described to voters statewide in Colorado, as is required, in the publication created by the state’s Legislative Council (staff to the state legislature) known as the “Blue Book”.The description for Amendment 46 was entitled:

Discrimination and Preferential Treatment by Governments

Amendment 46 proposes amending the Colorado Constitution to:

● prohibit Colorado governments from discriminating against or granting preferential treatment to

any individual or group on the basis of race, sex, color, ethnicity, or national origin in public

employment, public education, or public contracting;

● make exceptions for federal programs, existing court orders or other legally binding agreements, and bona

fide qualifications based on sex; and

● provide the same remedies that are available for violations of existing Colorado anti-discrimination law.

Amazingly, despite the reaction one would expect from such a description (“well, duh, of course we don’t want our state or local governments to be discriminating”), Colorado voters turned down Amendment 46, although by a fairly narrow margin (49.2% for, 50.8% against.)However, in Nebraska, a very similarly worded initiative was approved by 58% of state voters.

Next time: we consider the actual legal effect of these initiatives when adopted amending state constitutions: is there any real impact, or has federal law limited the use of affirmative action so significantly that these initiatives are simply a political statement akin to the “English-only” initiatives?

[3] The actual ballot language used in Michigan in 2006 was:A PROPOSAL TO AMEND THE STATE CONSTITUTION TO BAN AFFIRMATIVE ACTION PROGRAMS THAT GIVE PREFERENTIAL TREATMENT TO GROUPS OR INDIVIDUALS BASED ON THEIR RACE, GENDER, COLOR, ETHNICITY OR NATIONAL ORIGIN FOR PUBLIC EMPLOYMENT, EDUCATION OR CONTRACTING PURPOSES.See http://www.michigancivilrights.org/media/Actual%20Ballot%20Language.pdf

[4] The standards by which ballot titles are adjudged, as stated on the Colorado Supreme Court website, are whether the initiative concerns a single subject, and if so, is the title fair and not a misleading statement of the meaning of the actual proposed constitutional or statutory amendment text.

A bill that would ban new “discriminatory” taxes on mobile phone services and property has been reintroduced in Congress.The Cell Tax Fairness Act of 2009, a version of which was introduced but failed to pass in both 2008 and 2007, would impose a five-year moratorium on the enactment of any new “discriminatory tax” by local or state governments on “cell phones services, providers, or property.”It was reintroduced just last week as H.R. 1521 by Reps. Zoe Lofgren (D-CA) and Trent Franks (R-AZ).A companion bill was also introduced in the Senate.

The Act apparently does not preempt existing state or local tax measures applicable to mobile telephony services.It only would affect new taxes to the extent that they are “discriminatory,” that is, not imposed generally, or imposed at a lower rate, for other tangible personal or commercial property or for “persons that are engaged in businesses other than the provision of mobile services.”According to Rep. Lofgren, “The Cell Tax Fairness Act does not take away any existing revenue for state or local governments, it simply calls for a period of tax stabilization.”

The bill defines “tax” as “any charge imposed by any state or local government for the purpose of generating revenues for governmental purposes.”

The bill was referred to the House Judiciary Committee.

While the bill is obviously supported by the cell phone industry – and its powerful lobby – we expect the bill to face opposition from a wide variety of parties, likely including state and municipal governments and their representative organizations.Interested representatives of communities who would like to have further information or updates concerning this legislation are encouraged to contact us.We will continue to monitor this legislation, assist municipalities desiring to participate in the deliberation process, and otherwise provide updates as may be requested.

Does the fact that the FDA has approved a drug’s label preempt a state law claim that an addition to the label was necessary to make the drug reasonably safe for use? On March 4, 2009, in Wyeth v. Levine, the Supreme Court considered that question, and held that such a claim is not preempted by federal law – in what may prove to be an important decision reflecting the Court’s view of preemption generally. While some commentators had previously suggested that the Roberts Court was likely to be sympathetic to business claims that a federal regulation preempts state and local laws, Wyeth – like December’s decision in Altria v. Good – may suggest that the Court’s approach to the Supremacy Clause is more sophisticated, and more sympathetic to state and local interests. It may also suggest that, where Congress acts in a field where states and localities have traditionally had strong, independent regulatory roles, the Court will be reluctant to preempt state and local requirements except where the law expressly provides for preemption. In today’s environment, when federal regulatory agencies are asserting broad rights to preempt state and local laws with very little express statutory authority, the case could prove quite significant…particularly if the reasoning in Justice Thomas’ concurrence is adopted in future cases.

Like many tort cases, the facts of Wyeth are difficult. On April 7, 2000, Diana Levine visited a local clinic for treatment of a migraine headache. When the physician assistant administered Phenergan an anti-nausea medication, using the IV-push method, the drug entered Levine’s artery and came in contact with arterial blood. As a result, Levine developed gangrene, and doctors were ultimately forced to amputate her forearm. In addition to her pain and suffering, Levine incurred substantial medical expenses and the loss of her livelihood as a professional musician.

Levine filed suit against Wyeth, the manufacturer of the drug. A jury found that Wyeth was negligent and that Phenergan was a defective product as a result of inadequate warnings and instructions regarding IV-push administration of the drug. Wyeth claimed that the suit was preempted by federal law – based on the fact that the FDA had approved Phenergan’s label. The trial court and Vermont Supreme Court disagreed, upholding a jury award of damages to Levine.

In a 6-3 decision, the Supreme Court affirmed. The Court began its analysis by recognizing that “the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.” Slip op. 8 (citing Medtronic v. Lohr, 518 U.S. 470, 485 (1996)). First, the Court rejected the claim that it was “impossible” for Wyeth to comply with the state-law duty to modify Phenergan’s labeling without violating federal law. Id. at 12. The Court ruled that federal rules allowed Wyeth to add “newly acquired information” to a label. Id. In addition, the Court rejected the claim that requiring Wyeth to provide a stronger warning about IV-push administration of the drug would “obstruct the purposes and objectives of federal drug labeling regulation.” Id. at 17. The Court found no evidence that Congress had intended to establish “a ceiling” on drug regulation. Indeed, while Congress had enacted an express pre-emption provision for medical devices, 21 U.S.C. § 360k(a), it did not do so with respect to prescription drugs, despite its “certain awareness” of state tort litigation. As the Court put it, “The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.” Id. at 18.

Finally, the Court recognized an important principle of administrative law with respect to preemption. Wyeth had contended that a preamble to an FDA regulation indicated that federal law establishes both a “floor and a ceiling” to drug labeling regulation. Id. at 19. The Court recognized that while an agency regulation with the “force of law” can preempt state requirements, the Court “has performed its own conflict determination, relying on the substance of state and federal law and not on agency proclamations of pre-emption.” Id. (emphasis added). In this case, because Congress did not empower the FDA to preempt state law directly in this context, the Court examined what level of deference it owed the FDA. The Court concluded it did not owe the FDA any such deference because the preamble was not the product of public comment, and because it is at odds with other evidence regarding Congress’s purposes. Id. at 21. In his concurrence, Justice Breyer indicated that “it is possible that [lawful specific regulations] would have pre-emptive effect.” Opinion of J. Breyer at 2.

Justice Thomas’s concurrence is especially notable. He stresses that because our federalist system is one of dual sovereignty, the Court’s preemption analysis should focus more closely on the statutory text. As he puts it, “This Court’s entire body of ‘purposes and objectives’ preemption jurisprudence is inherently flawed.” Opinion of J. Thomas at 13. As he explains, “[T]he majority has concluded from silence that Congress believed state lawsuits pose no obstacle to federal drug-approval objectives. That is the required conclusion, but only because it is compelled by the text of the relevant statutory provisions, not judicial suppositions about Congress’ unstated goals.” Id. at 22. Any other approach, in his view, leads to “the illegitimate – and thus, unconstitutional – invalidation of state laws.” Id. At 24.

Lingle v. Chevron, 544 U.S 528 (2005) helped clarify the relationship of takings, unconstitutional conditions, and substantive due process. It’s the one decision I ask people to read, both lawyers and people who haven’t suffered through law school, when I want to help them understand where the U.S. Supreme court is on these issues. The Court may have passed up an opportunity in the decision to make some bright line rules for takings, but it still helps considerably.

This last week, the Supreme Court of Montana did something curious with a substantive due process claim. In Town & Country Foods v. City of Bozeman, decided on March 10th — click here for a copy — the Big Sky Country high court seemed to say you can’t use substantive due process to challenge a zoning decision unless you are challenging the constitutionality of the regulation itself.

Let me back up here. Basic facts – Town & Country wanted approval of a 32,000 square foot store in the B-1 zone. The maximum store size in the zone is 5,000 square feet so they broke up the big store into six mini-stores – pharmacy, bakery, produce market etc. Cute trick. Wal*Mart tried that a few years ago, in Virginia I think, and then backed down.

The city commission “reclaimed” the application – basically made it theirs to decide – and denied it.

The usual lawsuit followed, based on due process and equal protections claims. The trial court granted summary judgment for the city and the Montana Supreme Court upheld the trial court – no substantive due process or equal protection violations and not an abuse of discretion to deny. By the way, the trial court said that there is no property interest in a site plan approval. That sounds more like the Second Circuit.

Now, here’s the curious part. Consider first this from the decision:

“Substantive due process primarily examines underlying substantive rights and remedies to determine whether restrictions are unreasonable or arbitrary when balanced against the purpose of a government body in enacting a statute, ordinance or regulation. In other words, the test of whether the government denied a party constitutional substantive due process concerns an examination of whether the government, by enacting a piece of legislation, acted in an unreasonable, arbitrary, or capricious fashion. [Citations omitted.]”

Okay, I can go along with that, so long as I know substantive due process is available in the world of as applied decisions.

But now, what do you think of this:

“A constitutional substantive due process analysis is inapplicable under the facts of this case because T&C does not allege Bozeman’s Zoning Ordinance is unconstitutional. T&C essentially argues the city commission failed to follow its own ordinance in denying its application and therefore acted arbitrarily and capriciously.”

In the end, the court undertook the analysis separately under the heading of “abuse of discretion” asking if the decision was “unreasonable, arbitrary, capricious, unfair, or discriminatory.” The court found it was none of these things.

I guess I will now go reread Professor Daniel Mandelker’s article “Entitlement to Substantive Due Process: Old versus New Property in Land Use Regulation” and see if I can’t figure it out. click here to read along with me…

This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.